Below is insightful article about the Verizon vs FCC case that is being heard in the DC Circuit Court – the second-most powerful court in the US, behind the Supreme Court. If Verizon wins their lawsuit then we will likely see the end of a free and open internet, as we know it today…

Net neutrality is a dead man walking. The execution date isn’t set, but it could be days, or months (at best). And since net neutrality is the principle forbidding huge telecommunications companies from treating users, websites, or apps differently — say, by letting some work better than others over their pipes — the dead man walking isn’t some abstract or far-removed principle just for wonks: It affects the internet as we all know it.

Once upon a time, companies like AT&T, Comcast, Verizon, and others declared a war on the internet’s foundational principle: that its networks should be “neutral” and users don’t need anyone’s permission to invent, create, communicate, broadcast, or share online. The neutral and level playing field provided by permissionless innovation has empowered all of us with the freedom to express ourselves and innovate online without having to seek the permission of a remote telecom executive.

But today, that freedom won’t survive much longer if a federal court — the second most powerful court in the nation behind the Supreme Court, the DC Circuit — is set to strike down the nation’s net neutrality law, a rule adopted by the Federal Communications Commission in 2010. Some will claim the new solution “splits the baby” in a way that somehow doesn’t kill net neutrality and so we should be grateful. But make no mistake: Despite eight years of public and political activism by multitudes fighting for freedom on the internet, a court decision may soon take it away.

Game of Loopholes and Rules
How did we get here?

The CEO of AT&T told an interviewer back in 2005 that he wanted to introduce a new business model to the internet: charging companies like Google and Yahoo! to reliably reach internet users on the AT&T network. Keep in mind that users already pay to access the internet and that Google and Yahoo! already pay other telecom companies — often called backbone providers — to connect to these internet users. [Disclosure: I have done legal work for several companies supporting network neutrality, including Google.]

But AT&T wanted to add an additional toll, beyond what it already made from the internet. Shortly after that, a Verizon executive voiced agreement, hoping to end what he called tech companies’ “free lunch”. It turns out that around the same time, Comcast had begun secretly trialing services to block some of the web’s most popular applications that could pose a competitive threat to Comcast, such as BitTorrent.

Yet the phone and cable companies tried to dress up their plans as a false compromise. Counterintuitively, they supported telecommunications legislation in 2006 that would authorize the FCC to stop phone and cable companies from blocking websites.

There was a catch, however. The bills included an exception that swallowed the rule: the FCC would be unable to stop cable and phone companies from taxing innovators or providing worse service to some sites and better service to others. Since we know internet users tend to quit using a website or application if it loads even just a few seconds slower than a competitor’s version, this no-blocking rule would essentially have enabled the phone and cable companies to discriminate by picking website/app/platform winners and losers. (Congress would merely enact the loophole. Think of it as a safe harbor for discriminating online.)

Luckily, consumer groups, technology companies, political leaders, and American citizens saw through the nonsense and rallied around a principle to preserve the internet’s openness. They advocated for one simple, necessary rule — a nondiscrimination principle that became known as “network neutrality”. This principle would forbid phone and cable companies not only from blocking — but also from discriminating between or entering in special business deals to the benefit of — some sites over others.

Unfortunately, the FCC decision that included the nondiscrimination rule still had major loopholes — especially when it came to mobile networks.
Both sides battled out the issues before Congress, federal agencies, and in several senate and presidential campaigns over the next five years. These fights culminated in the 2010 FCC decision that included the nondiscrimination rule.

Unfortunately, the rule still had major loopholes — especially when it came to mobile networks. It also was built, to some extent, on a shaky political foundation because the then-FCC chairman repeatedly folded when facing pressure. Still, the adopted rule was better than nothing, and it was a major advance over AT&T’s opening bid in 2005 of a no-blocking rule.

As a result, Verizon took the FCC to court to void the 2010 FCC rule. Verizon went to court to attack the part of the rule forbidding them from discriminating among websites and applications; from setting up — on what we once called the information superhighway — the equivalents of tollbooths, fast lanes, and dirt roads.

There and Back Again
So that’s where we are today — waiting for the second most powerful court in the nation, the DC Circuit, to rule in Verizon’s case. During the case’s oral argument, back in early September, corporate lobbyists, lawyers, financial analysts, and consumer advocates packed into the courtroom: some sitting, some standing, some relegated to an overflow room.

Since then, everyone interested in internet freedom has been waiting for an opinion — including everyday folks who search the web or share their thoughts in 140 characters; and including me, who argued the first (losing) network neutrality case before the DC Circuit in 2010.

Web and mobile companies will live or die not on the merits of their technology, but on the deals they can strike with AT&T, Verizon, Comcast, and others.
But, in their questions and statements during oral argument, the judges have made clear how they planned to rule — for the phone and cable companies, not for those who use the internet. While the FCC has the power to impose the toothless “no-blocking” rule (originally proposed by AT&T above), it does not (the court will say) have the power to impose the essential “nondiscrimination” rule.

It looks like we’ll end up where AT&T initially began: a false compromise.

The implications of such a decision would be profound. Web and mobile companies will live or die not on the merits of their technology and design, but on the deals they can strike with AT&T, Verizon, Comcast, and others. This means large phone and cable companies will be able to “shakedown” startups and established companies in every sector, requiring payment for reliable service. In fact, during the oral argument in the current case, Verizon’s lawyer said, “I’m authorized to state from my client today that but for these [FCC] rules we would be exploring those types of arrangements.”

Wait, it gets even worse. Pricing isn’t even a necessary forcing factor. Once the court voids the nondiscrimination rule, AT&T, Verizon, and Comcast will be able to deliver some sites and services more quickly and reliably than others for any reason. Whim. Envy. Ignorance. Competition. Vengeance. Whatever. Or, no reason at all.

So what if you’ve got a great new company, an amazing group of founders, a seat in a reputable accelerator program, great investors and mentors. With the permission-based innovation over “our pipes” desired from the likes of Comcast, Verizon and AT&T… there’s no meritocracy here.

Of course, despite everything the judges suggested during the two-hour argument, it’s possible that they offer net neutrality a reprieve. Given how sticky this morass is, there’s one simple way for you to judge the opinion: If the court throws out the non-discrimination rule, permission-less innovation on the internet as we know it is done. If the nondiscrimination rule miraculously survives, then, for now at least, so too will freedom on the internet.

A funny essay by humorist and journalist Tina Dupuy about Net Neutrality:

The term “net neutrality” has the magical property of making most people’s eyes glaze over. First, it sounds like a gambling term. “I have a system and net neutrality – I can’t lose!” Second, no one using the Internet calls it “the net” anymore. Just like no one in San Francisco calls it “Frisco.” So the term “net neutrality” either sounds super techie and over-your-head, or more dated than the 1995 Sandra Bullock movie called…The Net.

The concept of Net Neutrality is simple: all content should be treated equally. The Internet should be, as it has been, on a virtual level playing field.

Google and Verizon announced at the beginning of August their agreement for an “Open Internet.” In their statement the FCC will continue to lack the power to enforce an open Internet, and it excludes wireless broadband from transparency, citing proprietary concerns. This is worrisome since wireless broadband is the future of the Internet. Plus, in order to ensure “openness,” wireless or not, the Internet should be regulated like any other public utility.

So as soon as the word “regulation” is uttered, a Frankenstein monster of a faux populist movement arises to dispute and/or cloud the issue. With corporate sponsorship they’ve become a loud lobbying spectacle for business interests. Cleverly they use pro-working people language, and often working people themselves, to sell policies of freedom for corporations. Yes, the Tea Party or the Grand Old Party on caffeine, is (of course) against Net Neutrality.

The Tea Party and its coalition of “grassroots” think tanks want corporations to be in control of the Internet so it will “stay open.” In a signed letter sent to the FCC and the media the day after the Google/Verizon agreement was announced, the Tea Party groups’ statement added that government regulation, “could also remove the ability for parents and ISPs to prevent inappropriate material from entering the home.”

Catch that? Let business do what it wants or you won’t be able to protect your children from smut. It’s the most vulgar thing I’ve ever heard. Horribly untrue. And a cynical attempt at fear-mongering. “Your children are at risk!” Deplorable.

Government regulation is always annoying – unless we can’t swim in the Gulf of Mexico, or eat eggs, spinach, beef or peanut butter. But wait – annoying to whom? Government regulation irks corporations. For those of us who drive the cars, eat the food or take the medications made by corporations, government regulations are in the most basic way – lifesavers.

Personally, I would like a government bureaucrat between me and Salmonella.

The Tea Party would have opposed the National Parks system. Sectioning off millions of acres of land which otherwise could be privately developed is a job killer! Letting places like Yosemite Valley just sit there without allowing business to “improve the experience” is an affront to freedom! Uncle Sam’s telling Americans where they can and can’t build is government overreach! The whole scheme will raise your taxes! Taxes – and they’ll take your guns!

But no, Republican leaders like Abraham Lincoln and Teddy Roosevelt saw how these parks should be nationalized, saved for future generations to have and enjoy. Lincoln did coin the phrase “for the people, by the people,” the perfect slogan for a walk through a government-regulated and, therefore, pristine forest.

And our more perfect union needs to ensure that the Internet can be open and indifferent to content (even if you disagree with said content). Congress didn’t just sit on their hands and hope that just because no one had yet developed Yellowstone it wasn’t at risk of such a fate. No, they acted. They protected it. Yellowstone is still there for all of us to enjoy. It’s ours.

What needs to happen? Earlier this year, the U.S Court of Appeals for the District of Columbia handed down the Comcast Decision stating under current law, the FCC doesn’t have the authority to regulate equality of content. This means the law must be changed.

Congressman Henry Waxman, chairman of the Committee on Energy and Commerce that oversees the FCC, said he is for Net Neutrality. Waxman said any bill about the issue would have to come out of his committee. What’s taking so long? The hold up is that the term “Net Neutrality” sounds like a fishing ordinance instead of what Senator Al Franken describes as “the free speech issue of our time.”

Bring ye all the tithes into the storehouse and prove me now herewith saith the Lord of hosts, if I will not open you the windows of heaven and pour you out a blessing that there shall not be room enough to receive it.- Malachi 3:10-12

Sometimes I wonder what it was going to take to get the public more galvanized on the issue of protecting Net Neutrality. As if the Supreme Court’s enthusiastic approval of oligarchy wasn’t enough, we’re facing another one of the biggest threats to free speech and democracy – corporate control of the Web.

Basically, the telecommunications industry wants to erect tollbooths on the Internet. They want to make content creators pay top dollar for their web sites to download faster. They want to choose winners and losers, get rid of competition and make consumers cough up more money. Gutting net neutrality is great if you’re a certain cable company, like, say, Comcast, who wants to merge with a certain entertainment company, like, say, NBC Universal, and combined, you wish to crush any troublesome Internet entertainment startup. Gutting net neutrality would also be great news for the giant television news outlets and bad news for any of the myriad of web sites that criticize them.

Unfortunately, net neutrality was never the sexiest political issue. So maybe the announcement last week that Google and Verizon were proposing to put up the tollbooths on the wireless Internet (your smartphone) would wake people up. Google was initially the premier corporate champion of net neutrality, so the company’s about-face shocked and angered many. Apparently, since Google is now getting into the cell phone business, suddenly net neutrality was no longer good for the bottom line.

Google and Verizon swear they want to keep the wired Internet (your PC) free and open, but the proverbial camel’s nose is sniffing under that tent. Consumer and media reform groups and some lawmakers have been the most vocal advocates for net neutrality. But greater support for net neutrality has to come from average Joes and Janes who use the Web. Too many people I fear are still apathetic on this issue. If you don’t start bugging your representatives, you may one day find that your favorite web sites are taking five minutes or more to load. Or you may find you have to pay extra for content you once got for free.

Comedian and now U.S. Senator from Minnesota, Al Franken, has been at the forefront in fighting for net neutrality in Congress. Today, at 4PM PST (6PM Central), the Federal Communications Commission is holding a hearing in Minneapolis on the issue. The proceedings will be streamed live.

In the video below, Franken talks on local Minnesota television about the importance of net neutrality.

To show your support for net neutrality, sign Sen. Franken’s petition and send your comments to the FCC by going to Save the Internet. And also, call, write and fax your congressperson and senators. If you don’t know your representatives, you can look them up by entering your zip code on Congress.org.

“As large media conglomerates grow bigger, individual voices are increasingly left out of any meaningful dialog—even at a “public” hearing. You might think it’s a great opportunity to speak truth to power, but you’d be mistaken. The same money and power that allow corporations to control the public airwaves is also painfully evident in their ability to control the tone at a public hearing.” Read More>>

A similar argument is made by the Action Coalition for Media Education (ACME) the nation’s only media literacy organization that does not accept funding from Big Media:

“No matter what one’s cause, media reform is crucial for the success of that cause, and since only those who are media-educated support media reform, media education must be a top priority for all citizens and activists…” –from the ACME Mission Statement

Specifically, the NAB wants the FCC to eliminate rules restricting cross-ownership of newspapers and broadcast stations, relax radio station ownership rules as well as rules restricting ownership of television stations in certain markets. Media watchdog group, Free Press, immediately petitioned the FCC, criticizing the NAB’s request, and noting that the commission has gone too far already in allowing more media company consolidation. Free Press Policy Counsel Corie Wright:

“The FCC’s media ownership rules are critical to ensuring that the public’s primary news and information sources do not become consolidated in the hands of a few companies. Moreover, the so-called efficiencies of consolidation have not materialized. Instead, the cost of consolidating has placed a number of companies that might otherwise be profitable in dire straits, resulting in disinvestment in newsgathering and job losses for journalists.

“We urge the Commission to resist industry pressures to further weaken ownership limits. Companies that have made poor business decisions should not be rewarded with permission to engage in even more media consolidation that would further injure competition and diversity among local media outlets. It is not the Commission’s job to protect industry profit margins. Rather, its role is to promulgate and enforce regulations designed to promote competition, diversity and localism so that the public interest is served.”

If the FCC lets broadcasters own just about every newspaper, television and radio station in one market, quality journalism will continue to suffer. We’ll have even fewer – if any – news stories about how the City Council is spending taxpayer money, and more gossip about Lindsay Lohan’s legal troubles. After all, to a media company looking after its bottom line, gossip sells – government doesn’t. And there will be fewer alternatives available for the kind of reliable information one needs to make good decisions in a democracy. The Internet has yet to become a sufficient destination for local news. Besides, most people still get their news from television. Instead of informing viewers, broadcasters are spoon-feeding them entertainment disguised as “news,” with the result being too many people who know next to nothing about how their government works. That’s what rampant consolidation has brought us.

These broadcasters have stuffed themselves enough. Isn’t it time the FCC put them on a diet?

Good governance group Common Cause is joining with 20 other organizations in opposing the proposed merger between cable conglomerate Comcast and NBC Universal. Calling themselves The Coalition for Competition in Media, the groups include organizations across the political spectrum, from the conservative-leaning Parents Television Council to the more liberal National Organization for Women to the non-partisan Common Cause. The coalition argues that the proposed merger threatens consumer choice and fair competition in the media market.

In the meantime, the House Committee on Energy and Commerce and the Federal Communications Commission held public hearings July 8 and July 13 in Chicago on the merger. Click on the links below for testimony:

It was a telling moment. At a public hearing this past Monday, Rep. Maxine Waters, whose district encompasses a predominantly minority area of south Los Angeles, ticked off the names of NBC’s new fall season shows and the number of actors and producers of color on each. The paucity of representation was pretty obvious.

Waters and other members of the House Judiciary Committee held the hearing at the California Science Center in Los Angeles to hear from Hollywood producers, cable executives, academics and others about Comcast’s proposed merger with NBC Universal. Some of the panelists expressed fear that the merger would result in fewer opportunities for minorities in the entertainment business and therefore, fewer outlets to have their stories told. Other panelists, mainly television executives, were supportive of the merger, saying that Comcast has a proven commitment to diverse programming. It was a standing room only crowd inside the center’s Donald P. Loker Conference Center, where lawmakers took testimony from 11 witnesses. Interestingly, although NBCU sent several representatives to the hearing, Comcast sent none. Besides Waters, the lawmakers included her fellow Democrats, Judiciary Chairman John Conyers from Michigan, Rep. Judy Chu of San Gabriel, and Rep. Steve Cohen from Tennessee, and Republican Rep. Louis Gohmert from Texas.

“I think this an historic moment in the economic life of this country,” said Conyers, after commenting on the surge in mergers and takeovers in the last 30 years of rapid deregulation. I don’t know if this is an historic moment. It’ll probably be more like business as usual. I got the feeling that this hearing was more of a dog and pony show than anything meaningful, because I fear this deal is going to go through, no matter what the public thinks. Only the 11 witnesses got to speak and interact with the lawmakers; there was no session for members of the public to comment. One witness, Samuel Kang of the non-profit public policy organization, The Greenlining Insitute, was critical of what he felt was a dearth of public input about the proposed merger. Kang, an opponent of the merger, said that the Federal Communications Commission itself has yet to have a public hearing about the deal. However, Waters said that at the urging of lawmakers, the FCC extended the public comment period for 45 more days.

Waters’ spotlight on the near white-wash of the NBC fall shows was a highlight of Monday’s hearing, which was heavily focused on how the proposed merger may affect diversity within the entertainment business. I realize being in Los Angeles that we’re in the middle of Hollywood, but I still would’ve like to have heard more witnesses touch on how further consolidation could negatively affect newsgathering. Yes, we like our entertainment in L.A., and I’m not happy that a lot of television shows don’t reflect America’s demographics. But there are also a lot of us who are also concerned about how local news stations in this city aren’t serving residents very well, and that this merger may make things worse. Kang spoke about the news a little bit, asserting that media consolidation has resulted in a gutting of local news coverage and staff in several major cities, particularly in Spanish-speaking markets.

Nevertheless, the conversation was eye-opening. Chu stated that the 8-9PM so-called “family hour” on television is the least ethnically diverse. She added that 40% of primetime series have only Caucasian characters, and that 80% of series are white-themed. This compares with a nation that is roughly one-third minorities, and California that is 53% people of color. The number of minorities behind the camera and in management are pretty dismal. Waters stated that in 2007, minorities owned 3.2% of U.S. television stations and only 7% of full power radio stations. When questioned by Waters, Paula Madison, Executive Vice President for Diversity at NBCU, said there are only seven minority co-executive producers associated with five of the 18 new fall shows. Of all of NBC’s showrunners – a series’ lead producer – none are African-American. Gee, no wonder my viewing habits have begun shifting away from scripted dramas and comedies.

Several participants talked a lot about how many shows with predominantly minority cast members have disappeared over the last decade as consolidation stripped creative control away from once powerful independent producers. Former Motown executive Suzanne de Passe, who is currently co-chair of de Passe Jones Entertainment, said consolidation has slowed down opportunities for minority program development.

“We have gone backwards,” de Passe said. “The question is why?” She said that unlike in the past, independent producers are now required by mega-media conglomerates to give up ownership and creative control of the shows they pitch. Plus, they’re paid less than they used to be. De Passe added that black executives have never had the power to “greenlight” – give permission to proceed on a project. “We need greenlight power. The power to say ‘yes,'” she said. She said Comcast has the opportunity and resources to change this kind of institutional racism.

Other witnesses rejected the merger plan outright. Stanley Washington, chairman and CEO of the National Coalition of African American Owned Media, said that none of the 250+ channels on Comcast’s platform are 100% minority-owned, and called for a boycott of the company. Accusing Comcast of perpetuating a virtual apartheid, Washington said, “African-Americans are no longer interested in living on the Comcast plantation.” Washington verbally jousted with merger supporters Alfred C. Liggins III, President and CEO of Radio One Inc., and Will Griffin, President and COO of Hip Hop On Demand. Griffin defended Comcast by saying that minorities have the best leverage with the company. He added that the reason why shows with predominantly African-American casts have gone away is because advertisers aren’t willing to pay for a lot of slots on black-themed shows. Liggins and Griffin, who are both black, took issue with Washington’s assertion that for a company to be considered “minority-owned,” a person of color must own 100% of said company, rather than simply a majority stake.

Alex Nogales, President and CEO of the National Hispanic Media Coalition, and Kathryn Galan, Executive Director of the National Association of Latino Independent Producers, said they wanted to see Comcast be more proactive in addressing the problem of minority underrepresentation. Calling Comcast’s record on diversity “spotty,” Nogales specifically wanted the merger deal to contain “enforceable conditions” regarding employment, procurement, governance, programming and philanthropy. Madison, the NBCU exec, said that Comcast has a plan in place to improve workforce recruitment, supplier diversity and community investment. She also said she has received letters from 230 organizations in support of the merger. I’d like to know how many of those organizations received money from Comcast.

None of the lawmakers – especially free-market fanatic, Gohmert – expressed overt opposition to Comcast’s proposed takeover of NBCU. But some maintained a large dose of skepticism about the deal, especially Waters, who insisted that the merger not be rushed through without close scrutiny. Watch her speak below:

It remains to be seen whether testimony from opponents will have any sway over the FCC, the Justice Department or Congress. Conyers said there will be more hearings in the future. The question should be whether we want fewer and fewer people running ever bigger companies deciding what we see and hear on our television sets, radios and on the Web. Common sense will tell you that the fewer people making decisions, the more homogenous the output. The new fall shows across the broadcast networks continue to follow the same pattern of medical, cop and legal dramas. Even a lot of cable channels don’t seem to have the unique signature they once had, as more of the programming seem to copy one another. For example, Bravo (owned by NBCU) used to be the classical arts channel, and TLC (owned by Discovery) used to be an educational channel. Both have completely abandoned those original missions in favor of 24-hour reality TV. They should just combine to become The Reality Channel. I thought the new Planet Green channel (owned by Discovery) was supposed to be all about ecological programming, but it includes in its lineup a show about a restaurant that trains former felons in new skills to help them turn their lives around. It’s an inspiring show, but what does it have to do with the environment? Even the History Channel (owned by A&E Television Networks) has shows that have nothing to do with history, like Ice Road Truckers and Pawn Stars.

People, including entertainers of color in Hollywood, have a right to be alarmed about this merger. Comcast’s supporters would like us to believe that they are fully committed to diversity, but it’s a business like any other whose primary goal is to make a profit. And the larger the company, the bigger the profit motive. The bigger the profit motive, the more incentive there is to cater to the broadest tastes possible, to downplay what makes human beings different, and to avoid taking risks on the unique and the original. Shows that can get the most amount of eyeballs in order to attract the most amount of advertising dollars usually get the green light. Chasing profits doesn’t bode well for diversity.

You can access the hearing’s full witness list along with links to their written testimony here. To comment on the proposed merger, go to the FCC’s public comments web page. The proceeding number is 10-56: “In the Matter of Application of Comcast Corporation General Electric Company and NBC Universal Inc. for consent to assign license or transfer control of licensees.”